Access to justice and collective actions ‘Florence’ and beyond

Cases involving a large number of potential claimants have long presented difficulties to legal systems designed to accommodate disputes primarily among a small number of parties. Deterred by factors such as the costs of potential court proceedings and the imbalance of power between parties, private actors often abstain from pursuing their rights. Potential defendants who have caused significant but dispersed harm may thus escape from sanctions or liability. As a result, multiple layers of interests, or ‘multilayer interests’, ranging from the interests of private actors in protecting their rights on the one hand to the interests of society as a whole in deterring socially detrimental behaviour on the other, may be left unsatisfied. To remedy this problem, various forms of collective actions have been developed. They range from group actions, in which individual actions are assembled into one procedure; to representative actions, in which an association sues on behalf of a multitude of claimants; to test case procedures, in which claimants sue in order to set a precedent for others. These various forms of collective actions aim to facilitate ‘access to justice’ for private actors, that is, the ability to enforce and protect one's rights through a legal process. In addition to bundling a larger number of fragmented individual interests, they are seen as a mechanism to safeguard the common interests of specific groups of claimants and of society as a whole. Moreover, collective actions are not just a procedural tool but raise a number of political, social and economic issues, for instance, balancing of interests between weaker private actors and bigger players, coordination of collective actions with enforcement efforts by public agencies, cost issues and a possible subordination of the individual for the sake of larger or collective interests.